Can i get a review?

[Pax]

I dont know if its proper to post this on here but I will ( I cobbled this together from various posts and legal sites):

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES—VAN NUYS

ZWICKER & ASSOCIATES,

Plaintiff,

vs.

Defendant.

CASE NO.:

DEFENDANT(name)’S NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF (name) FILED IN SUPPORT THEREOF

Date: July, 28 2010

Time: 8:30 A.M.

TO PLAINTIFF ZWICKER & ASSOCIATES

PLEASE TAKE NOTICE THAT defendant (name) will File pursuant to CCP § 418.10 to move the Court for an order quashing serviceof the summons and complaint herein on the ground that Defendant (name) has not been validly served with process and therefore the court does not have jurisdiction over Defendant (name).

This motion is based on this Notice of Summons, the accompanying Memorandum of Points and Authorities, the declaration of (name), and upon all the pleadings and documents on file herein, of which the Court is requested to take judicial notice, and upon such oral and documentary evidence as may be presented during argument on this motion.

______________________________________

(name)

MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION AND STATEMENT OF FACTS

The underlying action, although not entirely clear to defendant (name) (hereinafter referred to as “Mr. (name)”), appears to relate to an alleged debt incurred by Mr. (name) to AMERICAN EXPRESS several years ago.

On or about July, 2010, Zwicker apparently tried to effectuate service of process on Mr. (name), by personally serving Mr. (name) at (ADDRESS) , (“(ADDRESS) Address”).

After attempting to personally serve Mr. (name) at the (ADDRESS) Address, Zwicker attempted to effectuate service of process by substituted service. In particular, a copy of the summons and complaint was apparently left at the (ADDRESS) Address and a copy was mailed to Mr. (name) at the (ADDRESS) Address.

Mr. (name) has never held in Los Angeles County an, “office,” “dwelling house,” “usual place of abode or business” or “usual mailing address.” (See Exhibit “A”, Decl. of Mr. (name)) as is required for proper substituted service pursuant to Code of Civil Procedure § 415.20.

Therefore, the purported substituted service of Mr. (name) is invalid and ineffective, and Mr. (name) respectfully requests that the court issue and order quashing the service of summons and complaint on Mr. (name).

II.

MR. (name) WAS IMPROPERLY SERVED

A. Mr. (name) has not been personally served

California Code of Civil Procedure § 415.10 provides in pertinent part, as follows:

“A summons may be served by personal delivery of a copy of the summons of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery.”

Mr. (name) was not personally served as evidenced by her attached declaration. (See Exhibit “A”, Decl. of Mr. (name)) Further, plaintiff has not filed a proof of service indicating that Mr. (name) was personally served and has relied on a proof of service declaration based on substituted service.

B. The purported service on Mr. (name) is invalid

Substituted service necessarily requires a copy of the complaint and summons be delivered, as well as mailed to the defendant’s “office,” “dwelling house,” “usual place of abode or business” or “usual mailing address.” Code of Civil Procedure § 415.20.

In the instant case, Zwicker purported to effect substituted service at Los Angeles County address by delivering the summons and complaint and later mailing a copy thereof to a Los Angeles County address. At no time in the past 5 years has Mr. (name) neverhas used a Los Angeles County address as his “office,” “dwelling house,” “usual place of abode or business” or “usual mailing address” as required for valid substitute service pursuant to Code of Civil Procedure § 415.20. (See Exhibit “A”, Decl. of Mr. (name))

Therefore, the purported substituted service of Mr. (name) is invalid and ineffective and quashing of the summons and complaint is proper.

III.

CONCLUSION

For the foregoing reasons, defendant Mr. (name) respectfully requests that the service of summons and complaint be quashed.

IV.

AFFIRMATIVE DEFENSES

As and for a First Defense

Zwicker & Associates has not proven that they were retained by American Express as its representative in this matter.

As and for a Second Defense

Plaintiff has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.

As and for a Third Defense

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

As and for a Fourth Defense

Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

As and for a Fifth Defense

Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

As and for a Sixth Defense

Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them.

As and for a Seventh Defense

Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.

As and for a Eighth Defense

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

July 28, 2010

______________________________________

(name)

DECLARATION OF (name)

I, (name), declare:

1. I am the defendant in the above-entitled action.

2. If called and sworn as a witness in this matter, I would be able to testify competently of my own personal knowledge as to the truth of the matters set forth in this declaration.

3. I was never served with a summons or complaint in the instant action and only learned of the action on or about July, 22 2010, when my father contacted me after discovering the action stuff into the mail box of the his residence.

4. At no time in the past 5 years has Los Angeles County Address been address as my “office,” “dwelling house,” “usual place of abode or business” or “usual mailing address.”

5. The Residence is NOT in the Jurisdiction of this court.

6. FURTHERMORE, the Defendant lacks information sufficient to admit or deny the allegations contained in or deny the allegations contained in Plaintiff’s Complain, therefore they are denied.

7. FURTHERMORE, Defendant DENIES every other allegation not previously admitted,

denied or controverted.

8. FURTHERMORE, the Defendant prays that the court would dismiss this case with prejudice.

9. FURTHERMORE, the Defendant request to file a counter claim against the Plaintiff for damages in an unspecified amount for falsely filing a Complaint with a court or jurisdiction KNOWN to the Plaintiff to NOT BE the Jurisdiction or the alleged residence of the defendant.

10. FURTHERMORE, the Defendant request to file a counter claims against the Plaintiff for damages in an unspecified amount for time lost, Legal research, and travel

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct.

Executed this 28 day of July 2010

_____________________

(name)

Edited July 30, 2010 by Pax

[RebelLady]

You might want to edit out the personal details...

RL

[jackson212]

remove your name and case number

and if that's your address, edit that too!

(((to echo RebelLady)))

i dont know about the question you posed

[Pax]

This is my response to a summons that was improperly served to me, I cant afford to fly out to California to response in person and the court is NON too helpful.